State Central Authority and Henfold - [2010] FamCA 1172

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & HENFOLD

[2010] FamCA 1172

FAMILY LAW – CHILD ABDUCTION – Hague Convention on the Civil Aspects of International Child Abduction – Habitual Residence – Consideration of LK v Director-General, Department of Community Services (2009) 237 CLR 582 – Whether a person is habitually resident in a Convention State or is nomadic

Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) s 111D
Family Law (Child Abduction Convention) Regulations 1986 Regulation 14(1), Regulation 16, Regulation 29(2)
Hague Convention on the Civil Aspects of International Child Abduction (1980)

Briginshaw v Briginshaw (1938) 60 CLR 336
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Secretary of the Attorney-General & Stamatelos [2008] FamCA 1117
State Central Authority & Perkis [2010] FamCA 649

APPLICANT:

Secretary of the Attorney‑General’s Department (Cth) as State Central Authority

RESPONDENT:

Mr Henfold

FILE NUMBER:

CAC

1364

2010

DATE REASONS DELIVERED:

27 October 2010

DATE ORDERS ENTERED ON THE

RECORD:

10 November 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks ACJ

HEARING DATE:

26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Berger

SOLICITOR FOR THE APPLICANT:

Australian Government Solicitor

COUNSEL FOR THE RESPONDENT:

Mr G. Howard

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini & Dunn

Orders

Orders of 27 October 2010

Final orders are to be settled by the parties by agreement, or alternatively by the Court failing agreement, in accordance with the Judgment of the Court, within seven (7) days of the date of Judgment. Final orders will then be incorporated into the formal version of this Judgment.
A copy of this Judgment may be provided to the solicitors representing the mother, Ms Henfold, in the family law proceedings known as Henfold & Henfold CAC 1112 of 2010.

Final Orders – entered on the record 10 November 2010

IT IS ORDERED BY CONSENT AS TO THE FORM OF THE ORDERS THAT:

The Respondent shall deliver Y (the child) to the child's mother, Ms Henfold (the mother), in Hawaii in the United States of America (USA) by accompanying him on an airline flight(s) to Hawaii on or before midnight 24 November 2010 (Hawaii time).
The Respondent shall advise the mother of the details of the flight(s) referred to in order (1) above at least 48 hours prior to the scheduled arrival in Hawaii.
The Respondent shall meet his own costs associated with travelling to Hawaii, USA.

IT IS NOTED THAT:

The mother has agreed to pay the costs associated with purchasing the airline ticket for the child to travel to Hawaii, USA.
The Respondent agrees to withdraw the related proceedings he has commenced in the Family Court of Australia (Henfold & Henfold (P)CAC 1112/2010).

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Henfold is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1364 of 2010

SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT (CTH) as STATE CENTRAL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading State Central Authority and Henfold

Details

AGLC: State Central Authority and Henfold [2010] FamCA 1172
Case: [2010] FamCA 1172
Decision Date: 10 November 2010

CaseChat Overview and Summary

The case of *State Central Authority and Henfold* concerned an application before Faulks ACJ. The dispute involved the delivery of a child, identified as Y, to the child's mother, Ms Henfold. The proceedings appear to have arisen in the context of family law matters, with reference made to separate family law proceedings involving Ms Henfold.

The central legal issue before the Court was the determination of final orders regarding the child's relocation to Hawaii, USA. Specifically, the Court was required to establish the terms and conditions under which the child would be delivered to the mother in Hawaii.

The Court's reasoning led to consent orders being made by the parties. These orders stipulated that the Respondent was to deliver the child, Y, to Ms Henfold in Hawaii by accompanying him on an airline flight on or before midnight on 24 November 2010 (Hawaii time). The Respondent was also required to provide the mother with flight details at least 48 hours prior to the scheduled arrival in Hawaii and to bear his own travel costs to Hawaii.

Orders

Orders of the court

Orders of 27 October 2010

Final orders are to be settled by the parties by agreement, or alternatively by the Court failing agreement, in accordance with the Judgment of the Court, within seven (7) days of the date of Judgment. Final orders will then be incorporated into the formal version of this Judgment.

A copy of this Judgment may be provided to the solicitors representing the mother, Ms Henfold, in the family law proceedings known as Henfold & Henfold CAC 1112 of 2010.

Final Orders – entered on the record 10 November 2010

IT IS ORDERED BY CONSENT AS TO THE FORM OF THE ORDERS THAT:

The Respondent shall deliver Y (the child) to the child's mother, Ms Henfold (the mother), in Hawaii in the United States of America (USA) by accompanying him on an airline flight(s) to Hawaii on or before midnight 24 November 2010 (Hawaii time).

The Respondent shall advise the mother of the details of the flight(s) referred to in order (1) above at least 48 hours prior to the scheduled arrival in Hawaii.

The Respondent shall meet his own costs associated with travelling to Hawaii, USA.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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